Pearce v. Mut. of Omaha Ins. Co.
| Decision Date | 19 May 2020 |
| Docket Number | No. A-19-868.,A-19-868. |
| Citation | 945 N.W.2d 516,28 Neb.App. 410 |
| Parties | Kevin P. PEARCE and Julie Pearce, appellants, v. MUTUAL OF OMAHA INSURANCE COMPANY and Continuum Worldwide Corp., appellees. |
| Court | Nebraska Court of Appeals |
Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell, P.C., L.L.O., Omaha, for appellants.
Richard P. Jeffries, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Omaha, for appellees.
Kevin P. Pearce and Julie Pearce attempt to appeal for the third time from two underlying orders entered by the Douglas County District Court on October 16, 2018, and May 23, 2019. Appellees, Mutual of Omaha Insurance Company (Mutual of Omaha) and Continuum Worldwide Corp. (Continuum), have filed a motion for summary dismissal on the basis that the Pearces’ appeal is now untimely. We agree the appeal is untimely, and we therefore sustain appellees’ motion for summary dismissal and dismiss the appeal for lack of jurisdiction.
Ordinarily, a summary dismissal by this court is limited to a brief docket entry filed in the case. However, given the confusion apparent in this case with regard to orders memorialized on docket sheets, i.e., journal entries; final judgments; and adequate appellate records, a detailed explanation is warranted.
Kevin was an insurance agent for appellees; he rented office space from Mutual of Omaha where he kept personal computers which contained business and personal information. Kevin's contract with appellees was terminated without warning on January 17, 2014. Kevin was escorted from his office, and he subsequently filed an action for the return of his property. Appellees filed a counterclaim seeking damages for breach of contract and misappropriation of trade secrets, along with an injunction against Kevin's possession or use of appellees’ proprietary material. Appellees filed a motion for summary judgment; the following sequence of events then took place:
The Pearces filed a notice of appeal on June 21, 2019. Although neither party raised a jurisdictional issue, this court on its own motion issued an order to show cause noting that the matter was under jurisdictional review. The show cause order pointed out that the district court "clerk's certificate indicates that a motion or motions to alter or amend judgment" had been filed on October 24, 2018. Because neither the motions nor orders were included in our transcript, the Pearces were ordered to provide this court copies of any motion to alter or amend judgment, along with the district court's subsequent ruling on the motion or motions. In response, the Pearces filed a supplemental transcript which contained the motions to alter or amend filed by the Pearces and Mutual of Omaha, as well as the December 13 order pertaining solely to Mutual of Omaha's motion to alter or amend as noted above. However, the Pearces did not include in the supplemental transcript a copy of the November 30 docket entry contained in the Judges Notes which memorialized the district court's denial of the Pearces’ motion to alter or amend following a hearing. We note here that our appellate court rules provide for inclusion of such records in the transcript. See Neb. Ct. R. App. P. § 2-104(B) (). See, also, Neb. Rev. Stat. § 25-914 (Reissue 2016) ("[e]very direction of a court or judge, made or entered in writing and not included in a judgment, is an order").
Because the Pearces failed to provide any documentation to establish that their motion to alter or amend had been ruled upon by the district court on November 30, 2018, this court dismissed their first appeal on July 25, 2019. This court's docket entry dismissing the appeal stated, "District Court has not yet ruled upon [the Pearces’] motion to alter or amend."
At this point, the Pearces could have requested a rehearing and could have provided to this court through a supplemental transcript a copy of the November 30, 2018, docket entry in the Judges Notes reflecting the district court's denial of the Pearces’ motion to alter or amend. However, the Pearces did not do so. As a result, their appeal was dismissed because the appellate record did not demonstrate that the Pearces’ October 26 motion to alter or amend had ever been ruled upon by the district court and their appeal appeared to be premature. See Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2018) ().
Following this court's dismissal of the Pearces’ first appeal, instead of filing for rehearing or filing a petition for further review, the Pearces instead filed another notice of appeal on August 9, 2019. They again indicated that they sought review of the October 16, 2018, order (summary judgment) and the May 23, 2019, order (permanent injunction). This time, Mutual of Omaha's motion to alter or amend filed October 24, 2018, and the Pearces’ motion to alter or amend filed October 26 were included in the transcript, along with the December 13 order which related only to Mutual of Omaha's motion. However, the Pearces had requested in their praecipe for transcript, "Any and all Judge's Notes throughout this proceeding." The transcript filed by the district court clerk did not contain the Judges Notes as requested by the Pearces. On August 21, 2019, this court issued an order to show cause, stating:
A review of the current record fails to show that the Douglas County District Court ever ruled on [the Pearces’] motion to alter or amend the judgment. [The Pearces] are given 10 days from the date of this order to file a supplemental transcript with this court which contains a file stamped copy of the district court's order denying their motion to alter or amend the judgment. Failure to file such a supplemental transcript may result in the appeal being summarily dismissed ....
On August 23, 2019, the Pearces filed a "Response to Order to Show Cause." It stated that the district court judge "did not enter an Order on the [Pearces’] Motion to Alter or Amend filed on or about October 26, 2018[,]" but that the parties "met in chambers for hearing on the parties’ competing Motions to Alter or Amend on November 30, 2018, where [the district court judge] denied [the Pearces’] Motion to Alter or Amend (see attached Exhibit ‘A’, Judges Notes dated 11/30/2018)." Exhibit A showed various filings, and at the end of the document, the Judges Notes contained the November 30, 2018, docket entry denying the Pearces’ motion to alter or amend.
This court dismissed the second appeal on August 29, 2019, with a docket entry stating, "District court has not yet ruled upon [the Pearces’] motion to alter or amend." Although this was not quite accurate based on the November 30, 2018, docket entry now supplied to this court in response to the order to show cause, the Judges Notes were not provided to this court in a supplemental transcript. Regardless, even if the Judges Notes had been included in the initial transcript in this second appeal (as requested by the Pearces in their praecipe) or in a supplemental transcript in response to the order to show cause, the second appeal could not have been saved.
Because the second appeal was filed on August 9, 2019, and the district court's final judgment was entered on May 23, the appeal was now untimely. There was nothing in the record to show that the 30-day appeal time had been tolled. We acknowledge that this court's docket entry may have created some confusion by dismissing the second appeal on the basis that the "District court has not yet ruled upon [the Pearces’] motion to alter or amend." This likely led to the Pearces erroneously believing that the November 30, 2018, docket entry contained in the Judges Notes...
To continue reading
Request your trial